Thursday, April 17, 2008

If it aint broke, don’t fix it!

From conjugal partnership of gains to absolute community of property back to conjugal partnership of gains?

House Bill 2420 seeks to amend Article 75 of the Family Code of the Philippines by reinstating the system of conjugal partnership of gains as the basis for the property relations between husband and wife. The bill was authored by Cebu Representative Pablo Garcia with Representatives Mauricio G. Domogan, Elpidio Jr. F. Barzaga, Solomon Chungalao, Amado Bagatsing, Adam Relson Jala, Rufus Rodriguez, Liza Maza, Cinchona Cruz Gonzales, Raul Del Mar and Neptali Gonzales as co-sponsors. Congress passed the bill last February 5 and transmitted it to the Senate on February 11.

Article 75 of the Family Code provides for the absolute community of property as the default system of property relations between spouses. The article states,

The future spouses may, in the marriage settlements, agree upon the regime of absolute community, conjugal partnership of gains, complete separation of property, or any other regime. In the absence of a marriage settlement, or when the regime agreed upon is void, the system of absolute community of property as established in this Code shall govern.
I have previously written about the system of absolute community and you might want to re-read that article. Essentially, the system of ACP entitles the spouse to equal rights over the property acquired by the husband or the wife before and during the marriage (with certain exceptions), even with properties titled solely in the name of one spouse.

Reasons why the Family Code chose absolute community of property rather than conjugal partnership of gains

Prior to the Family Code’s effectivity in August 1988, a spouse had no right over the property that his or her partner acquired before marriage. The Spanish Civil Code, which was enforced from 1889 to 1950, and the New Civil Code, which was in effect from 1950 to 1986, both mandated the conjugal partnership of gains. The commission which crafted the Family Code believed that the ACP was more in keeping with the values of Filipinos than the CPG, and more conducive to the unity of the spouses and the oneness of the family since it was based on mutual trust and confidence.

Some of the members of the Family Code commission were legal luminaries like Justices JBL Reyes and Irene Cortes, Professors Flerida Ruth Romero, Ruben Balane, Esteban Bautista, Deans Bartolome Carale and Fortunato Gupit Jr. The commission worked on the draft of the Family Code for seven years and eight months from September 1979 to May 1987, with 182 meetings in all, each lasting from three to six hours.

You might remember that the Family Code took away (wisely in my opinion) the mayors’ right to solemnize marriages. However the Local Government Code of 1990, in a very unwise and politically motivated accommodation, restored to the mayors the right to solemnize marriages. And now we have HB 2420 …

HB 2420, if passed into law, will seriously disadvantage women

Ar Sabangan of GMANews.TV has written an article entitled “Family Code amendment passed in silence, may disadvantage women”. The article cites Supreme Court Justice Artemio Panganiban, a retired judge and a MLQU law professor who all disagree with HB 2420.

Grace L. Plata of SunStar Davao has also written an article entitled “Judge airs concern over plan to amend Family Code”. To read the complete article, click here.

4 comments :

confused young mom said...

hi atty.. i would like to ask for an advice. i was married at the age of 20. eversince my husband family never help us financial or even moral support. after three years of marriage i caught my husband cheating on me by acccident. in turnd out that he got the girl pregnant. i thougth it was just a simple affair but as research about it, his family knew about it even before. cause he sometimes goes to the province to work and thats were they started to have an affair. his mother even spread rumors that i pikot him. and some his relatives are telling me now that my husbands mom is the one tyring to cover up that track of the girl. cause i've been trying to know her excat location. we have two kids the older one is three and the youngest is only 9 moths old. what are the legal actions can i take against them. pls help me, thank you very much.. more power!

Atty. Gerry T. Galacio said...

confused young mom,

1. You can file cases against your husband under RA 9262 Anti-Violence Against Women and their Children Act of 2004. You can file a criminal case for psychological violence (NOT concubinage) under RA 9262 where the penalty is six years to twelve years imprisonment. You can also file a civil case for damages under RA 9262.

Please read my articles on RA 9262 found in this blog. Look for the links in the sidebar.

The psychological violence case can only be filed against tour husband. If you want to charge the woman also, you have to file a concubinage case under the Revised Penal Code. HOWEVER, concubinage is very difficult to prove in court. What you can do is file a case of psychological violence against your husband under RA 9262 and a civil case for damages under the New Civil Code of the Philippines against the woman.

2. As for financial support, through a Protection order under RA 9262, you ca compel your husband to support you and your children. Please read my article entitled “Support for abandoned woman and family” also on this blog. You can use this link:

http://famli.blogspot.com/2006/10/support-for-abandoned-woman-and-family.html

Anonymous said...

Hi, i just learned recently that my husband has had an illigetimate child from his mistreess and i have just acquired the birth certificate of the child. Need to know your opinion if this evidence / proof is enough to prove/convict - mental infidelity under psychological abuse (ra9262)

Atty. Gerry T. Galacio said...

Go to the Women and Children’s Concerns Desk of the nearest PNP station and file your complaint there. The PNP officer in charge will then endorse your statement/complaint and other documents to the office of the city prosecutor.

OR, you can ask the help of the PAO or of a private lawyer in filing a complaint directly with the office of the city prosecutor.